Reluctance to Testify, Stigma and Lack of Family Support

As recognized by the ECtHR, victims of sexual violence have heightened interest in privacy because of the stigma attached to their injuries.¹³⁷

In the OSCE Survey, prosecutors stated that there were a number of cases in which the victim’s testimony could not be used due to the victim’s refusal to testify. Several prosecutors also believed that many cases of conflict-related sexual violence have not been reported due to fear of social stigma and that many women are still hiding the fact that they were raped during the war. These prosecutors stressed that they face problems with victims refusing to testify despite assurances that all available protection would be afforded to them, and they emphasized that victims are often stigmatized in their local communities. One prosecutor openly stated that BiH is a conservative society where victims of rape are broadly understood to have consented to sexual intercourse. Another prosecutor opined that victim unwillingness to testify about events that took place 20 years ago stems from having a current stable family life that may be ruined, or jeopardized, by that testimony. Other prosecutors also said that members of the victim’s family are often not aware of what the victim went through during the war and, as a consequence, in order to avoid stigmatization and reliving the trauma, many victims opt not to report the crime or to testify.

The aforementioned was underscored in the Knežević trial verdict. In its reasoning, the court took into account the social context and the community perception of rape, noting that “even today rape is considered as a shame on women about which it is better not to talk (…) witnesses claimed that many women who were raped in the area of (…) don’t want to talk about that, especially those who were single at the time but after the war got married”.¹³⁸ During her testimony before the court, the rape survivor stated that, “if she had known”, she would not have reported the crime, because she was exposed to disgrace and, in her view, “it is better to remain silent and be ‘honest’”.¹³⁹

Prosecutors have cited several examples of male victims of sexual violence who refused to testify, including one male victim who did not even want criminal proceedings to begin. In another case, a male juvenile victim of sexual violence reportedly refused to testify at the main trial, and therefore only other eye-witness testimony was presented. However, at trial the eye-witness departed from the evidence he gave at the investigation phase and, as a result, this particular allegation of sexual violence was not proved before the court. The

137 See, e.g., Bocos-Cuesta v. the Netherlands, ECtHR, 10 November 2005, para. 69; Accardi et al. v. Italy, ECtHR, 20 January 2005, para. 1.

138 Knežević, Sarajevo Cantonal Court Verdict of 8 December 2004, page 12.

139 Ibid.

male victim in another case, after realizing that the investigators had information about the sexual violence he survived, not only refused to testify but also stopped co-operating with the prosecution in relation to the entire case. In the case of Monika Karan-Ilić, the male victim of alleged sexual violence refused to testify before the court. The prosecutor read the most relevant parts of his investigative statement and the victim-witness only confirmed. The defence was not in a position to cross-examine this witness, as the witness stated that he did not feel well, did not remember what he was saying at the time, and did not want to recall the alleged event.¹⁴⁰

Regarding lack of family support, one prosecutor shared an example of a victim who refused to give a statement because her husband did not allow her to testify. This type of situation has also been observed by OSCE Mission trial monitoring. For example, the OSCE Mission monitored Trivić et al.,¹⁴¹ in which a witness who became distressed while testifying and who could not identify the perpetrators indirectly revealed that she was severely ill-treated and raped. The indictment in this case was filed by the military prosecutor in 1994 and, because this particular charge was based on a statement by the victim’s husband who did not want to testify about the rape his wife survived, the indictment did not include this allegation. When the court attempted to calm the witness and encourage her to testify about the rape, she immediately refused to say anything. The witness also stated that her late husband had blamed her for what had happened to her. In the same case, this and other witnesses revealed at trial that, the same night, another family was attacked by the same perpetrators and a woman was raped.¹⁴² However, members of this other family, who were summoned by the court, explicitly refused in writing to testify, asserting that they wanted to forget the past.

Furthermore, according to prosecutors, long investigations and lenient sentences have discouraged victims from testifying. The prosecutors also pointed out that, due to the lapse of time, collecting evidence is very difficult and hinders the prosecution of all war crimes cases, especially those with allegations of sexual violence. In addition, according to the prosecutors, in a number of cases, the identity of the perpetrator is unknown to the victim.

5.2 Witness Protection and Support Capacity in the Entities and Brčko District BiH

The testimony of victims of rape and sexual violence as witnesses is critical to the outcome of cases, since there is usually little or no other evidence available, yet they may feel a particular reluctance to testify as a result of numerous factors. Through its Trial Monitoring Programme, the OSCE Mission has identified several issues regarding the need for witness protection measures, the proper application of witness protection measures, the lack of availability of witness support at the entity and Brčko District BiH level, and the negative consequences for witnesses of repeat testimony. The OSCE Mission has also documented some serious breaches of witness protection measures.¹⁴³

140 Karan-Ilić, Appellate Court of Brčko District BiH Verdict of 1 October 2013, page 12.

141 Trivić et al., Banja Luka District Court.

142 Ibid, Verdict of 13 December 2010, page 20.

143 For further details, see the OSCE Mission report Witness Protection and Support in BiH War Crimes Trials:

Progress and Obstacles a Year after Adoption of the National Strategy on War Crimes Processing, available at:

http://www.oscebih.org/documents/osce_bih_doc_2010122314375593eng.pdf.

Combating Impunity for Conflict-Related Sexual Violence in BiH: Progress and Challenges 41

Since 2011, progress toward better protection and support has been achieved mainly as a result of international donor-funded projects.¹⁴⁴ The High Judicial and Prosecutorial Council BiH authorized initiatives funded by the European Union (EU), the UN Development Programme (UNDP) and the United States to renovate at least one courtroom in each court conducting war crimes trials. This created the appropriate technical conditions for the application of witness protection measures and included the reconstruction of courtrooms, the provision of technical means for transferring image and sound and the capability to distort image and sound. In most courts, where technical conditions permitted, witness antechambers were also constructed.¹⁴⁵ Furthermore, through the UNDP Witness Support Project and EU funding, witness support has become available in a number of jurisdictions where witness support officers were recruited by courts and/or prosecutor’s offices.¹⁴⁶

No progress has been observed with regards to strengthening the capacity of Social Welfare Centres which are, under the Laws on the Protection of Witnesses under Threat and Vulnerable Witnesses,¹⁴⁷ required to provide psychosocial support to witnesses. In practice, they still lack capacity to do so. Instead, certain prosecutor’s offices rely on the services of regional or thematic NGOs¹⁴⁸ to provide support to witnesses. One notable situation is in the war crimes unit within the Brčko District BiH police which, in October 2012, assigned a psychologist to provide support to traumatized witnesses.

The most frequent witness protection measure applied in cases of conflict-related sexual violence qualified as war crimes before the entity level and Brčko District BiH courts (excluding cases concluded by plea bargain agreement) has been the exclusion of the public from all, or part, of the trial pursuant to the criminal procedure codes. Other measures that did not depend on the availability of resources, such as the assigning of pseudonyms, have been granted in only a few cases. In the past, the lack of sufficient technical conditions for in-court witness protection has had a negative impact even on the implementation of protective measures that do not depend on these resources.¹⁴⁹ It remains to be seen to what extent, and how, judicial actors will use the witness protection capacities now in place in future investigations and trials.

144 These projects have included: an EU-funded renovation of courthouses; a UNDP Witness Support Project;

a Regional EU-funded project on physical witness protection, WINPRO; a project to develop a rulebook on witness protection at the entity level supported by the UK Embassy; and UK-funded projects to develop training curricula on conflict-related sexual violence for judges, prosecutors and investigators.

145 At the time of writing, only the Bihać Cantonal Court still lacked the necessary equipment.

146 Witness support staff have been hired in Sarajevo, Banja Luka, Novi Travnik and Travnik, Bihać, Brčko, Mostar, Istočno Sarajevo, Tuzla, Trebinje, Doboj and Zenica.

147 On 1 March 2003, as part of a set of reform measures “designed to ensure that the Court of BiH can fight organised crime and corruption effectively”, the OHR High Representative imposed the BiH Law on the Protection of Witnesses under Threat and Vulnerable Witnesses, Official Gazette (hereinafter ’OG’) of BiH 3/03, 21/03, 61/04, 55/05. Subsequently, equivalent laws were adopted at the entity level, RS OG 48/03 and FBiH OG 36/03.

148 The NGOs Vive Žene in Tuzla and Medica Zenica in Zenica are consistently active in this area. Several regional NGO networks have signed protocols on co-operation with regional authorities in order to set up support mechanisms for conflict-affected victims/witnesses in court proceedings. At the time of writing this report, protocols have been signed covering Zenica-Doboj Canton, Una-Sana Canton, Central Bosnia Canton, Tuzla Canton, Herzegovina-Neretva Canton, and Banja Luka City. Additional regional networks are expected to be formalized as a result of an EU-funded project supporting their creation.

149 See supra note 143, pages 15-16.

In addition, concerns remain regarding the physical protection of witnesses outside of court. Out-of-court or physical witness protection continues to be available only at the State level in BiH and may be implemented by the State Investigation and Protection Agency. There is no concrete legal or systemic provision for a witness protection programme at the entity and Brčko District BiH level. On 28 July 2011, the BiH Council of Ministers adopted a Decision on the Establishment of the Working Group for Drafting the Law on the Witness Protection Programme of BiH.¹⁵⁰ Its establishment is viewed as a very positive step towards improving witness protection in BiH. In November 2011, the Working Group finalized the draft law but, regrettably, the proposal did not include provisions for witnesses testifying before the entity level and Brčko District BiH courts to be included in the witness protection programme. The Law on the Witness Protection Programme of BiH was finally adopted by the BiH Parliament and entered into force on 20 May 2014.¹⁵¹ In addition, the entity police agencies do not have specialized witness protection units to carry out risk assessments and implement other operational protective measures, such as out-of-court protection. Therefore, insufficient witness protection capacity, including the absence of witness protection programmes, remains a problem in the entities, although both the National Strategy on War Crimes Processing and the BiH Strategy to Fight against Organized Crime highlighted the need to remedy this situation.

BiH authorities should initiate concrete legal and systemic steps to create conditions for the application of adequate witness protection measures at the entity level, including enhanced capacity for out-of-court protection and a functional witness protection programme.

150 In 2009, the BiH Parliament rejected a proposal to amend the Law on the Witness Protection Programme of BiH which would extend the powers of the State Investigation and Protection Agency to include implementing the out-of-court witness protection programme at the entity level for war crimes cases and other categories of cases on the basis that such a function falls within the competencies of the entity police agencies rather than the State authorities.

151 Official Gazette of BiH 36/14.

6. Criteria for Allocation, Prioritization of Cases and Capacities for Investigation

One of the main factors contributing to the difficulty of processing cases of wartime sexual violence is the lack of gender expertise at prosecutor’s offices relating to managing and conducting investigations into sexual violence crimes.¹⁵² The investigation and prosecution of wartime sexual violence requires a focused and sensitive approach that should be employed from the earliest possible stage in an investigation.

Effective investigation and prosecution of these cases requires that all personnel involved have the necessary expertise and knowledge to deal with gender-based crimes. The need for sensitivity, including gender considerations, is not limited to conducting an empathic interview – it applies to the whole cycle, from the identification of witnesses, to the first contact, to the interview, to post-interview support, to indictment and to post-trial support.

At the time of the OSCE Survey, prosecutors cited a lack of investigative capacity in the entity level prosecutor’s offices and an absence of training to deal with wartime rape and sexual violence cases. Indeed, the results of the OSCE Survey revealed that out of 29 prosecutors interviewed, only one had received training on handling sexual violence cases.

The OSCE Mission responded to fill this training gap by organizing several specialized trainings for judges and prosecutors on conflict-related sexual violence in 2013 and 2014 that were delivered by experts as part of the UK-led Preventing Sexual Violence Initiative.

Additionally, according to available information, the degree of support from law enforcement agencies to prosecutor’s offices and the gender composition of police officers both vary widely. In five territorial jurisdictions, all police investigators providing support in war crimes investigations are male and, in one jurisdiction, all female. There has been a recent increase in law enforcement expertise on wartime sexual violence investigations owing to a UK-funded project implemented by the OSCE Mission that trained over 100 war crimes investigators in BiH on this subject in 2014. Both entity Ministries of Interior have also incorporated wartime sexual violence investigation training into their standard police academy curricula.

Ideally, gender expertise should be mainstreamed throughout the prosecutorial and police services of BiH. There are currently no prosecutorial guidelines or policy initiatives in the entities that include either a gender perspective or that introduce specific policy obligations to investigate and bring to trial instances of conflict-related sexual violence.

Ideally, every prosecutor’s office should have a gender advisor, though this may not be possible presently due to limited resources. Prosecutors and law enforcement officers who deal with war crimes cases should undertake specific and continuous training for working on sexual violence cases.

152 See supra note 55, para. 109.

Moreover, the practices of selection, classification and allocation of cases play an important role in ensuring sexual violence cases are brought to trial. However, it generally appears that there are no particular criteria for case allocation in place. In one prosecutor’s office, it is an unwritten rule that cases of sexual violence are assigned to female prosecutors, while in another prosecutor’s office, the practice is that the prosecutor responsible for the case is of the same ethnicity as the victim. In another prosecutor’s office with an established war crimes department, the head of that department is responsible for case allocation.

The procedure for determining case priority has also varied significantly among prosecutor’s offices, from prioritizing war crimes cases in general, to dealing with cases in chronological order, to prioritizing based on factors such as the complexity of the case, the number of victims, the availability of suspects and witnesses, the status of the victim, the quality of the evidence/statements, the gravity of the charge, and/or the seriousness and consequences of the criminal act. It would be beneficial for the prosecuting authorities in the entities and Brčko District BiH to further develop their prosecutorial policies and criteria for the prioritization of war crimes cases which would include gender as a basis for prosecution. Such policies and criteria should adhere to the principle of mandatory prosecution enshrined in BiH law,¹⁵³ the complexity prioritization requirements elaborated in the National War Crimes Strategy, and the principles of transparency, consistency, accountability and efficiency. Recent efforts by prosecutor’s offices to prioritize wartime sexual violence crimes and other complex cases in their individual action plans are a welcome step in the right direction.

153 Article 18, FBiH CPC; Article 17, RS CPC; Article 17, Brčko District BiH CPC.

7. Summary of Recommendations

7.1 To Judges and Prosecutors in the Entities and Brčko District BiH

i. In the absence of relevant provisions within the SFRY Criminal Code, the courts in the entities should standardize their practice of recognizing the lack of any requirement for threat of force, force or resistance as elements of the crime in sexual violence cases, in order to ensure that all forms of sexual violence crimes are acknowledged in all proceedings before the courts. In this regard, appellate-level courts in the entities and Brčko District BiH should consider holding joint sessions in order to harmonize the application of criminal law.

ii. Prosecutors should ensure that allegations of sexual violence in all its forms are included in indictments and properly qualified in order to avoid possible perpetrator impunity, and so that the full nature and extent of the harm suffered by the victims of sexual violence are presented to the court.

iii. The prosecuting authorities in the entities and Brčko District BiH should develop their prosecutorial policies and criteria for the prioritization of war crimes cases to include gender as a basis for prosecution, while adhering to the principle of mandatory prosecution enshrined in BiH law, the complexity prioritization requirements elaborated in the National War Crimes Strategy, and the principles of transparency, consistency, accountability and efficiency.

These criteria should be made publicly available, particularly to sexual violence survivors.

iv. Judges should ensure that allegations of sexual violence in all its forms are properly assessed and qualified accordingly in verdicts in order to avoid possible perpetrator impunity and to ensure that the full nature and extent of the harm suffered by the victims is reflected in the verdict and subsequent sentence.

7.2 To Law Enforcement Agencies

v. Law enforcement agencies should pay special attention to the gender balance of police units providing support in war crimes investigations. These police investigators should continue to be provided with necessary expertise to deal with gender-based crimes such as conflict-related sexual violence.

7.3 To the High Judicial and Prosecutorial Council BiH

vi. The High Judicial and Prosecutorial Council BiH should ensure that all judges,

vi. The High Judicial and Prosecutorial Council BiH should ensure that all judges,